01A12026
09-06-2002
Susan Norga, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Susan Norga v. United States Postal Service
01A12026
September 6, 2002
.
Susan Norga,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A12026
Agency No. 1F-908-001700
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a General Clerk at the agency's Long Beach Processing and Distribution
Center, Long Beach, California. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 17, 2000, alleging that she
was discriminated against on the bases of race (Caucasian), national
origin (American), sex (female), religion (Christian), color (White),
disability (unspecified mental condition), age (D.O.B. 1/29/50), and
reprisal for prior EEO activity when she was removed from her position
as a General Clerk and her position was abolished.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to state a prima
facie case of discrimination based on race, sex, color, religion, national
origin, age, mental disability and retaliation for prior protected
activity because she failed to establish that others similarly situated
were treated differently. Assuming arguendo that complainant stated
a prima facie case, the agency concluded that the evidence demonstrated
complainant's position was abolished because an automated system had been
put into place and there was no further need for complainant's job in the
Address Management System. The agency concluded that complainant failed
to show its reasons were a pretext for discrimination and therefore,
she failed to prove discrimination by a preponderance of the evidence.
On appeal, complainant contends that the agency gave a particular Black
employee preferential treatment by placing her in a position as a General
Clerk. She attached much of the same documentation she provided during
the investigation. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), we find that complainant failed to establish discrimination by
a preponderance of the evidence on any of the bases alleged.
In general, our review of the evidence indicates that complainant offered
little evidence to support her claims of discrimination. In some
instances, complainant's assertions of preferential treatment were
found to be unsupported or based on false information. For instance,
complainant provided a list of employees whom she alleged were treated
more favorably without providing specific information about why or
on what basis she contended they received preferential treatment.
The agency responded that some of the listed employees were management
level employees and as such were not similarly situated to complainant.
In another instance, where complainant alleged that a Black employee
had received preferential treatment, the evidence revealed that this
employee's position had also been abolished. In sum, there was little
evidence in support of complainant's claim that she was subjected to
unlawful discrimination.
Complainant's only evidence that the agency's action abolishing her
position was retaliatory, consisted of the fact that she had engaged in
protected activity some five years before when she settled an EEO claim.
We find that complainant's protected activity five years in the past,
without more, is not enough to show a causal connection with the present
action at issue in this case.
We further find that complainant failed to demonstrate that the agency's
reasons for abolishing her position were a pretext for discrimination.
According to the agency's labor relations specialist, complainant did
not occupy a bid position and was required to bid on a vacant position or
be assigned to a residual position. Complainant offered no evidence to
refute the agency's assertion or give any reason to doubt the testimony
of the agency's witnesses.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 6, 2002
__________________
Date